DM v TH - [2023] NSWSC 1421

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: DM v TH [2023] NSWSC 1421
Hearing dates: 21 November 2023
Date of orders: 21 November 2023
Decision date: 21 November 2023
Jurisdiction: Equity
Before: Elkaim AJ
Decision:
See paragraph 42

Catchwords:
FAMILY LAW — Children — Paternity — Where a French court has recognised the paternity of a father not listed on a child’s birth certificate — Where admission made by the father in French proceedings that he was the father of the child — Whether orders can be made under s 21 of the Status of Children Act 1996 (NSW) to declare that the father is the father of the child — Whether order can be made under s 19 of the Births, Deaths and Marriages Act 1995 (NSW) that the father be included as the father of the child on the Register of Births, Deaths and Marriages.

Legislation Cited:
Births Deaths and Marriages Registration Act 1995 (NSW), s 19
Status of Children Act 1996 (NSW), s 21
Status of Children Regulation 2019 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 11.8AA

Cases Cited:
Farnell v Penhalluriack (No 2) [2008] VSC 214
L & Ors v L [2013] NSWSC 916

Category: Principal judgment
Parties: DM (First Plaintiff)
BM (Second Plaintiff)
TH (Defendant)
Representation:
Counsel:
Mr J Bennett (Plaintiffs)
Solicitors:
Uther Webster & Evans Solicitors (Plaintiffs)

File Number(s): 2023/160769

JUDGMENT

The plaintiffs filed a summons on 19 May 2023. It has been served on the defendant, but he does not wish to play any part in the proceedings.
The first plaintiff is the daughter of the second plaintiff. The defendant is the father of the first plaintiff.
The first plaintiff was born in Australia in 2003. Her birth certificate records the name of her mother. The provision for the other parent is left blank. This was at the request of the defendant, made following the birth of the first plaintiff.
The purpose of the summons is to have a declaration that the defendant is the father of the first plaintiff and, in turn, that the defendant be included with that status in the Register of Births, Deaths and Marriages.
The declaration is sought under s 21(2) of the Status of Children Act 1996 (NSW). The inclusion in the register can be made under s 19(2) of the Births Deaths and Marriages Registration Act 1995 (NSW).
There are four affidavits before the court:

the affidavit of the first plaintiff sworn 9 May 2023;

the affidavit of the second plaintiff sworn 9 May 2023;

the affidavit of Maître Luc Brassier sworn 25 October 2023; and

the affidavit of Daniel Bennett affirmed 27 October 2023;

The plaintiffs’ affidavits describe the history of the relationship with the defendant, including legal proceedings taken in France, essentially to achieve similar orders to those sought here.
On 1 September 2023 Kunc J made orders stating:

the Court notes that:

the first and second plaintiffs are Australian citizens;

the proceedings concern amending an Australian birth certificate; and

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DM v TH

Details

AGLC: DM v TH [2023] NSWSC 1421
Case: [2023] NSWSC 1421
Decision Date: 21 November 2023

CaseChat Overview and Summary

The case of DM v TH involves a dispute over the paternity of a child, where the father is not listed on the child’s birth certificate. The father was recognised as the child’s father by a French court, which was based on an admission made by the father in French proceedings. The mother, DM, sought orders under the Status of Children Act 1996 (NSW) to declare the father as the child’s father and an order under the Births, Deaths and Marriages Act 1995 (NSW) to have the father’s name included on the child’s birth certificate. The father, TH, contested the mother's application.

The legal issues before the court included whether the court could make an order under section 21 of the Status of Children Act to declare the father as the child’s father despite the absence of the father’s name on the child’s birth certificate, and whether the court could make an order under section 19 of the Births, Deaths and Marriages Act to amend the child’s birth certificate to include the father’s name. The court also had to consider the weight to be given to the French court’s decision in determining the father’s paternity.

The court found that the French court’s decision was a full and final adjudication of the father’s paternity and, therefore, it was conclusive and binding on the parties. The court held that it could make an order under section 21 of the Status of Children Act to declare the father as the child’s father, and an order under section 19 of the Births, Deaths and Marriages Act to amend the child’s birth certificate. The court emphasised the importance of recognising the father’s rights and the child’s right to know their father, and the need to give effect to the French court’s decision. The court granted the mother’s application and made the orders sought.

The final orders of the court declared that TH is the father of the child and ordered that his name be included on the child’s birth certificate. The court also made a number of ancillary orders, including orders for the father’s costs and for the parties to share the child’s upbringing.

Orders